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Oct. 13 — A super political action committee seeking to overturn Federal Election Commission
restrictions on a super PAC's use of a candidate's name is urging a federal court
to move quickly toward a final ruling on the issue (
Pursuing America's Greatness v. FEC, D.D.C., Civ. No. 15-1217, meet and confer statement filed
10/11/16
).

In an Oct. 11 filing with the U.S. District Court for the District of Columbia, lawyers
for the super PAC, called Pursuing America's Greatness (PAG), urged the court to adopt
a schedule that would complete briefing on summary judgment by early 2017.

Meanwhile, lawyers for the FEC asked for an extended briefing schedule, including
discovery, which would extend the case through most of next year.

The district court filings followed a recent federal appeals court ruling that enjoined
the FEC from enforcing the PAC naming restrictions against PAG, at least temporarily.
The U.S. Court of Appeals for the District of Columbia Circuit ruled in August that
restrictions on the super PAC's use of a candidate's name in a website or social media
platform was an unconstitutional restriction on speech, not a disclosure requirement,
as the FEC had contended.

No Appeal by FEC, DOJ

The six FEC commissioners deadlocked 3-3 in a vote last month on whether to appeal
the D.C. Circuit panel ruling to the full appeals court (4348 Money &
Politics Report, 9/21/16).

The Justice Department has not moved to file a petition for Supreme Court review.

The August ruling by a three-judge panel of the D.C. Circuit overturned rules that
the FEC commissioners previously had supported unanimously and that agency lawyers
fought in court to preserve. The agency said that rules were needed on use of a candidate's
name in order to prevent public confusion and possible fraud.

The current election cycle has seen more attention paid to PACs that purport to raise
money to support specific candidates but have been disavowed by those candidates—widely
known as “scam PACs.”

Ellen Weintraub, a Democratic FEC commissioner, proposed during a commission meeting
last month that the FEC launch a new staff working group to examine ways to deal with
scam PACs. Weintraub's call for a working group was backed by FEC Chairman Matthew
Petersen following a discussion of proposals on the issue by Weintraub and fellow
Democratic Commissioner Ann Ravel.

New Disclaimer Requirement?

A memo from Weintraub and Ravel said efforts to control scam PACs have been complicated
by the recent appeals court decision striking down restrictions on PACs use of candidate
names. However, the memo noted that the D.C. Circuit decision said the FEC has “extensive”
power to require that PACs include disclaimers on their communications stating that
they do not speak for a candidate.

Weintraub and Ravel suggested the FEC could require a PAC's web disclaimers to be
placed at the top of a web page and state clearly to donors and other viewers that,
despite the names or references they see, they are not looking at information provided
by a candidate's campaign committee.

The ongoing court case on PAC name restrictions arose from a plan by PAG to use the
name of Republican presidential contender and former Arkansas Gov. Mike Huckabee in
the name of a website and on Facebook and Twitter. After Huckabee dropped out of the
presidential race, the super PAC said it had similar plans to use the names of several
Republican congressional candidates, including Sens. Kelly Ayotte (N.H.) and Richard
Burr (N.C.).

The super PAC raised nearly $5 million in the current election cycle, according to
FEC disclosure filings, and reported about $3.5 million in independent expenditures
for messages promoting Huckabee's presidential candidacy. The super PAC has made no
further expenditures after Huckabee dropped out of the race earlier this year, but
it has continued spending money on consulting and legal fees.

To contact the reporter on this story: Kenneth P. Doyle in Washington at
kdoyle@bna.com

To contact the editor responsible for this story: Heather Rothman at
hrothman@bna.com

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